Where the Wild Lawyers Are: knocking sequels off Kickstarter

A London writer and illustrator who wanted to create a sequel to Where the Wild Things Are, one of the most famous children's books of all time, have had their idea shot down due to a copyright dispute. The book was to be a tribute to famed author Maurice Sendak on the one-year anniversary of his death.

Writer Geoffrey Todd and illustrator Rich Berner tried to raise money for the project on Kickstarter, but apparently lawyers at HarperCollins, which owns the copyright to Sendak's classic book, got wind of the project and sent a takedown notice to the crowdfunding site.

The duo said they got legal advice and were "very careful not to impinge on Mr. Sendak’s copyright," but that apparently wasn't good enough. The project, which was to have been titled Back to the Wild, has been removed from the site, with Kickstarter simply noting "it is the subject of an intellectual property dispute."

It's one of the great ironies of copyright in the digital age that it's easier to express disdain than love for a work. If Todd and Berner had written a scathing book review or a parody of Sendak's book, HarperCollins wouldn't have liked that, either—but there probably wouldn't have been anything they could do about it. There would be substantially better legal protections.

The takedown of this project demonstrates that when push comes to shove, creators of "fan fiction" don't have much support under current copyright law, and platforms like Kickstarter hardly want to have their back in a potentially complex dispute over fair use. Copyright has been used in many instances to control additional works in the "universe" in which a book or other work is set, even when the actual text and images in the new work are wholly original.

In 2008, Steven Vander Ark tried to publish a Harry Potter Lexicon based on a fan website he maintained. He got some of the best fair use lawyers in the country, from Stanford University's Fair Use Project, to defend his acts. But JK Rowling denounced his work, and Vander Ark's project was DOA after a short trial in federal court. A sequel to Catcher in the Rye written by a Swedish author was actually the subject of an extraordinary pre-publication injunction in 2010.

“We are of course very disappointed, especially as we submitted Back to the Wild to Kickstarter from within the UK, where we had taken specific legal advice and confirmed that we are not infringing copyright," writer Todd told paidContent. "We hope we can find an acceptable way forward.”

Sendak was famously opposed to the idea of creating a sequel for the book, despite pressure to do so. Even without the takedown, it's not clear the sequel project would have gone anywhere, since Todd and Berner had raised only £694, or about $1,039, of their £25,000 goal, according to paidContent.

It sounds like they didn't get very good legal advice, if they though that submitting it from within the UK would save them having to deal with the US arm of HarperCollins.

Can't say I feel too sorry for them, you don't write a sequel that an author never wanted as a "tribute", you write it to make wheelbarrows full of cash.

Kind of like the numerous versions of Yojimbo we have. I mean - similar but different concepts are totally foreign ideas.

And, fuck Shakespeare (ala, RAN)!

There's a bit of a difference between writing a book about a boy wizard who comes of age fighting evil and trying to publish a book called "Harry Plotter and the Wizards of Yore - a tribute to JK Rowling"

Plus I think Shakespeare's ability to uphold his copyright is somewhat limited these days. But if he wrote all his books 20 years ago most of the adaptations would require some licensing (at least the obvious ones, there'd probably be a few legal battles over movies like 10 Things I Hate About You).

It sounds like they didn't get very good legal advice, if they though that submitting it from within the UK would save them having to deal with the US arm of HarperCollins.

Can't say I feel too sorry for them, you don't write a sequel that an author never wanted as a "tribute", you write it to make wheelbarrows full of cash.

Kind of like the numerous versions of Yojimbo we have. I mean - similar but different concepts are totally foreign ideas.

And, fuck Shakespeare (ala, RAN)!

There's a bit of a difference between writing a book about a boy wizard who comes of age fighting evil and trying to publish a book called "Harry Plotter and the Wizards of Yore - a tribute to JK Rowling"

Plus I think Shakespeare's ability to uphold his copyright is somewhat limited these days. But if he wrote all his books 20 years ago most of the adaptations would require some licensing (at least the obvious ones, there'd probably be a few legal battles over movies like 10 Things I Hate About You).

So, the films Othello should abide by copyright today? Seeing that Copyright is owned by some mega company of that work?

Gotcha.

I'm not a fan of knock-off's. However, I do realize that inspiration is the true source of new ideas. And that means, taking from the old!

There should be an exception to copyright where if you aren't going to do anything with it for X years, it expires so that other people can make use of it.Sure, it was your idea, then you shared it with the world. If you aren't going to keep using it, you lose it.

If someone says they aren't going to make a sequel, the copyright over the ideas should last a shorter time. The original medium can stay theres (e.g. in this case the specific original book), but the world gets shared. If anything, it would be beneficial because if there's demand for derivative works it may well increase sales of the original.

I only say this because copyrights last an absurdly long time, and by the time they expire, the original material is likely going to be a century old. If original copyrights were shorter, it might be reasonable to let the original holder keep full control until expiry, even if they don't plan to do anything, but when they are so absurdly long, you are basically keeping things locked up away from people being able to explore them further.Use it or lose it.

So, the films Othello should abide by copyright today? Seeing that Copyright is owned by some mega company of that work?

Gotcha.

I'm not a fan of knock-off's. However, I do realize that inspiration is the true source of new ideas. And that means, taking from the old!

Do you get how copyright works? Shakespeare wrote Othello 400 years ago, it's way out of copyright, I could go make a movie based off the play right now, so long as I wasn't stealing bits from those other films directly. On the other hand the Hobbit movies involved a lot of negotiating with the family of Tolkien to get the film rights, because they hold the copyright.

It sounds like they didn't get very good legal advice, if they though that submitting it from within the UK would save them having to deal with the US arm of HarperCollins.

Can't say I feel too sorry for them, you don't write a sequel that an author never wanted as a "tribute", you write it to make wheelbarrows full of cash.

Kind of like the numerous versions of Yojimbo we have. I mean - similar but different concepts are totally foreign ideas.

And, fuck Shakespeare (ala, RAN)!

There's a bit of a difference between writing a book about a boy wizard who comes of age fighting evil and trying to publish a book called "Harry Plotter and the Wizards of Yore - a tribute to JK Rowling"

Plus I think Shakespeare's ability to uphold his copyright is somewhat limited these days. But if he wrote all his books 20 years ago most of the adaptations would require some licensing (at least the obvious ones, there'd probably be a few legal battles over movies like 10 Things I Hate About You).

So, the films Othello should abide by copyright today? Seeing that Copyright is owned by some mega company of that work?

Gotcha.

I'm not a fan of knock-off's. However, I do realize that inspiration is the true source of new ideas. And that means, taking from the old!

Er, Shakespeare is in the public domain. You do know what that is, don't you?

There should be an exception to copyright where if you aren't going to do anything with it for X years, it expires so that other people can make use of it.Sure, it was your idea, then you shared it with the world. If you aren't going to keep using it, you lose it.

If someone says they aren't going to make a sequel, the copyright over the ideas should last a shorter time. The original medium can stay theres (e.g. in this case the specific original book), but the world gets shared. If anything, it would be beneficial because if there's demand for derivative works it may well increase sales of the original.

I only say this because copyrights last an absurdly long time, and by the time they expire, the original material is likely going to be a century old. If original copyrights were shorter, it might be reasonable to let the original holder keep full control until expiry, even if they don't plan to do anything, but when they are so absurdly long, you are basically keeping things locked up away from people being able to explore them further.

Use it or lose it.

That puts far too much burden on a copyright holder. Do keep in mind that little people can hold copyrights, not just corporations. I can also see loopholes there - what of spinoffs?

I would not believe that Copyright can be a legitamate basis for blocking this type of work, unless it re-using specific text or art from the original. (That doesn't mean it can't be tried!) The "copy" in copyright refers to duplication, not imitation.

However, Trademarks can certainly be applied to fictional characters, worlds, and art styles if they are evocative of the original. A tribute book or fan fiction is *clearly* intended to do so.

To those complaining about "eternal" copyright. The book was published 50 years ago in 1963, and the author just died last year. While there are areguments for shorter terms, this is not a clear abuse of the system, either.

To those who say "use it or lose it" (which I generally agree with): The book is still in print and available in stores. Also, there is a wonderful movie released in 2009 based on the book. According to Wikipedia, there was an animated version made in 1974, and an opera in 1980. I would say that the publishers are doing a pretty good job of "using it"!

[quote="Lonyo"]There should be an exception to copyright where if you aren't going to do anything with it for X years, it expires so that other people can make use of it.Sure, it was your idea, then you shared it with the world. If you aren't going to keep using it, you lose it./quote]

What?! The original author DID use it. He wrote the book, and the publishers have kept it in print. Should a guy have to keep churning out sequels to keep his copyright? Like the world doesn't have enough sequels. Want to get rich writing a book? Come up with your own story and don't ask to ride on someone else's past successes.

Isn't this exactly what copyright is meant to do? I agree that it's stupid, but what's special about this case? You can't write a sequel to anything written in the last hundred years without some company's permission.

Copyright is supposed to encourage the creation of more works. If copyright encouraged the creation of a work that inspires the creation of another work, that's copyright achieving its goal. Preventing people from creating derivative works that compliment or expand on the source material is the opposite of what copyright sets out to accomplish. The constitution doesn't say "...to promote the progress of the useful arts and sciences..." just for shits and giggles. Additionally, it is most certainly not intended to provide occupational welfare for authors and artists. It is not meant to be used as a right to prevent competition.

If your goal is to create one great piece of work and live off of that for the rest of your life, you do not deserve copyright. The whole point is to create more works to further the education and cultural enrichment of the people, not prevent others from creating inspired works so that an author can exploit a perpetual monopoly on ideas.

So, the films Othello should abide by copyright today? Seeing that Copyright is owned by some mega company of that work?

Gotcha.

I'm not a fan of knock-off's. However, I do realize that inspiration is the true source of new ideas. And that means, taking from the old!

Do you get how copyright works? Shakespeare wrote Othello 400 years ago, it's way out of copyright, I could go make a movie based off the play right now, so long as I wasn't stealing bits from those other films directly. On the other hand the Hobbit movies involved a lot of negotiating with the family of Tolkien to get the film rights, because they hold the copyright.

edit: Trimming.

It's worth pointing out that the company holding copyrights to existing versions of Othello would almost certainly contact you demanding licensing fees, and threaten to haul you into court for copyright infringement if you didn't pay. Should those copyright holders take that action, you would certainly have to fold up or fight it out in federal court, because it would be unlikely that you'd get a summary judgement (of any sort).

Before you tell me about the public domain, let me point out that the company behind 'League of Extraordinary Gentlemen' faced exactly this sort of threat from the copyright holders for the movie 'The Invisible Man', even though the character (and story) 'The invisible Man' by H. G. Wells is in the public domain. There's also a claimed case where a filmmaker with explicit permission from the copyright holder had his production shut down by another company, due to the threat of a copyright lawsuit and the inability of the first filmmaker to finance the aforementioned federal copyright lawsuit. Mind, there's no evidence available about the second situation (the filmmaker won't say more, and FOX would be utterly stupid to comment on the situation), but you can read that one here:http://boingboing.net/2012/04/02/redditor-claims-his-licensed-a.html

If you decided to drop your project rather than spending $250,000 (or more), and 5-10 years before you could even start filming, would I get to jeer at your poor legal advice, and invent motivations for you so that I could take cheap shots at you on the internet?

Isn't this exactly what copyright is meant to do? I agree that it's stupid, but what's special about this case? You can't write a sequel to anything written in the last hundred years without some company's permission.

According to the US Constitution, copyright exists to promote scientific and artistic progress. That's clearly not happening here.

According to US copyright law (and the Berne conventions), copyright protects authors rights to their works. That may or may not be happening here, depending on whether the proposed project actually infringed on the original work. There's no way to know for sure whether or not the proposal infringed without a federal lawsuit, costing lots, and lots, and lots of money. Anything said here about whether it's infringing or not is basically a guess, and probably based more on one's prejudices about what one is entitled to (either as a member of the public or as a copyright holder) than anything about the works in question.

So, the answer is, maybe this is what copyright's supposed to do, and maybe it's not. I agree that it's stupid, though.

Copyright in the US and Berne Convention signatories such as the UK has ALWAYS applied to derivative works as well as duplicates of the original. This was the case long before Disney hijacked the copyright laws, and will likely continue to be the case long after any conceivable reform has happened.

Most copyright holders (individual as well as corporate) will look the other way if you're distributing your fanfic/tribute for free, but the moment you propose to charge money for it, you are purely in "at your own risk" territory. Kickstarter did nothing wrong here, and Todd and Berner should have had their heads examined.

Copyright in the US and Berne Convention signatories such as the UK has ALWAYS applied to derivative works as well as duplicates of the original. This was the case long before Disney hijacked the copyright laws, and will likely continue to be the case long after any conceivable reform has happened.

Most copyright holders (individual as well as corporate) will look the other way if you're distributing your fanfic/tribute for free, but the moment you propose to charge money for it, you are purely in "at your own risk" territory. Kickstarter did nothing wrong here, and Todd and Berner should have had their heads examined.

It's true that derivative works absolutely are (and should be) covered. I certainly don't have enough information to know whether or not the proposed project would count as a derivative work.

If we assume that the author/illustrator team isn't lying to us about having obtained qualified legal advice, then I don't see any reason to think that this issue wasn't raised, and that they thought that they had dealt with it.

Again, it's completely irrelevant whether or not something actually infringes something else, in the vast majority of cases, since the vast majority of people simply cannot afford to continue with a lawsuit. The only practical responses to an assertion of infringement are:1. pay a license fee, if the copyright holder chooses to accept one, and if you can afford it. Neither of these things are certain.2. drop the project and do something else.

In some sense, this is fine, but combine this economic fact with copyright terms at (or above) a century, and there's a real problem, IMO.

So, the films Othello should abide by copyright today? Seeing that Copyright is owned by some mega company of that work?

Gotcha.

I'm not a fan of knock-off's. However, I do realize that inspiration is the true source of new ideas. And that means, taking from the old!

Do you get how copyright works? Shakespeare wrote Othello 400 years ago, it's way out of copyright, I could go make a movie based off the play right now, so long as I wasn't stealing bits from those other films directly. On the other hand the Hobbit movies involved a lot of negotiating with the family of Tolkien to get the film rights, because they hold the copyright.

edit: Trimming.

It's worth pointing out that the company holding copyrights to existing versions of Othello would almost certainly contact you demanding licensing fees, and threaten to haul you into court for copyright infringement if you didn't pay. Should those copyright holders take that action, you would certainly have to fold up or fight it out in federal court, because it would be unlikely that you'd get a summary judgement (of any sort).

Before you tell me about the public domain, let me point out that the company behind 'League of Extraordinary Gentlemen' faced exactly this sort of threat from the copyright holders for the movie 'The Invisible Man', even though the character (and story) 'The invisible Man' by H. G. Wells is in the public domain. There's also a claimed case where a filmmaker with explicit permission from the copyright holder had his production shut down by another company, due to the threat of a copyright lawsuit and the inability of the first filmmaker to finance the aforementioned federal copyright lawsuit. Mind, there's no evidence available about the second situation (the filmmaker won't say more, and FOX would be utterly stupid to comment on the situation), but you can read that one here:http://boingboing.net/2012/04/02/redditor-claims-his-licensed-a.html

If you decided to drop your project rather than spending $250,000 (or more), and 5-10 years before you could even start filming, would I get to jeer at your poor legal advice, and invent motivations for you so that I could take cheap shots at you on the internet?

The story here has the attempted authors taking an obviously copyrighted book and trying to make a derivative of it. Their legal advice was useless, as it's not just a legal threat being thrown against them there's the actual force of the law.

The situations you use are simply highlighting the inadequacies of the legal system. Neither situation went to court nor was law upheld in anyway, in the boingboing article you reference they explicitly say that they would have had the rights to use it, but they would have gotten sued anyway because they knew they would win. The Invisible Man one is interesting in that film adaptations can be copyrighted, but really I don't know the ins and outs of the case.

There's a huge difference there, the stories you use they likely could have claimed the legal right to if they went through the terrible legal system in place. The story here they very unlikely have any chance of having the right to produce a book, despite their attempts to find ways around copyright law, which shouldn't have been necessary for the guy making the I, Robot movie.

Yeah - I get that. Hence why I made the point about works deviating from the source. Or, are you too fucking stupid to get that? Really? That I have to take up a 400 year old author who's actually out of copyright to make my point about abusive copyright.

I don't know if you know that there's evidence that Shakespeare borrowed heavily from his contemporaries as well as older established writings. If copyright existed in the Bard's time, he would likely have faced some threatening lawsuits himself.Note also that a copyright infringement case doesn't necessarily have to have merit. The threat of dragging someone into court against high-powered lawyers is often enough to scare people off. Legal threats from giant corporate publishers have disproportionate power. On the other hand, if author X has to beg Cousin Vinny to defend his intellectual property, he's not going to get very far.

EDIT: I guess hpsgrad already made that point, but it's worth repeating- there's no justice in the present system.

Possibly now, although you'll have to spend a lot of money to prove it. But yes, it will be interesting to see if copyright does lapse in 1923.

That said, there's a heap of Warner Bros cartoons in the public domain, including Bugs Bunny shorts, because Warners were not diligent enough at keeping their copyright registrations extended back before the US joined the Berne Convention and registration ceased.

To everyone thinking that the sequel should have been allowed, what about the wishes of the original author. He didn't WANT a sequel. He's only been dead a year, can we not loot his poor corpse yet? Second, how do you know the current owners of the copyright aren't currently working on a sequel? You want to take away their chance to publish it?

As for the kickstarter, I don't see much reason to take it down. But they were never going to publish a book without the consent of the author's heirs.

According to the US Constitution, copyright exists to promote scientific and artistic progress. That's clearly not happening here.

Is that in fact so clear? Here is the relevant clause: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

So. . . that's exactly what is going on here. It's a derivative work (defined as "a work based upon one or more preexisting works" 17 USC section 101) because, sequel. Case closed.

Also, why is everyone confused about Shakespeare? The original text is in the public domain. So if you can get your hands on it, or a copy of it, then you're fine! But it's all in Olde English and stuff, and not formatted the way a play would be today, and also too long. The copyrighted versions of Othello or whatever have all been translated and formatted to be useable by a modern theater company. There are cases about how much imaginative stuff you have to do to get a copyright, but they all involve dictionaries and phonebooks, and translation is a little more creative.

[quote="Why do you think they made the movie? cause it was well made, and for the boatloads of cash? nononono, it was to keep their trademark valid. Those other things were just side effects.

According to Wikipedia, the book has sold 19 Million copies over 50 years. Amazon currently lists the hardcover at $15, the paperback at $5. Certainly the price has increased over the years. Assuming an average selling price of $10, that's very roughly $6 Million per year. Probably somewhat less.

According to BoxOfficeMojo.com, the movie has grossed just over $100 Million. Most of that was probably made in the first year.

So, by making a movie, they made more money in a year than in 16 years of a best-selling book.

Do you *really* think the executives that gave it the green light were thinking of extending their IP rights more than swimming in a pile of money? (And yes, it is a very well made movie!)

If you don't use it you should lose it, but if you do use it, you're just being greedy. Did I get that right?

People miss the point of copyright as a force for creativity. Just because you cannot use a specific setting or character doesn't mean you cannot create. It just means you have to make something original/different. The idea is that as a creator you have to look at the problem/story/art from a different perspective.

Copyright on Mickey Mouse hasn't stopped people from creating new and different cartoon mice. They just had to create cartoon mice that were different from Mickey.

More and more I get the sense, and I could be wrong, that artists are using copyright as an excuse to avoid creating something new..

What an absurd notion. Your thoughts are your own and you can share them or keep them to yourself as you see fit. Unless you seriously believe that They are telling everyone what to think via their Evil Mind Controlling Rays.

As you'll have spotted from this thread, there are plenty of arguments for or against copyright. Dismissing it out of hand with a ridiculously trite statement isn't adding anything.

Making money from a story set in the fictional "universe" of another author, covered by copyright, or even creating a direct sequel or prequel to a book you own no copyright to should be blocked. Making fan fiction is just fine by me, but publishing to profit from it is a ridiculous notion.

What part of the notion of "intellectual property" was not understood? And what sort of lawyer would advocate intellectual property and copyright infringement? Harper Collins was well within their rights to inforce their copyright to protect their intellectual property.